Leslee Pettitt-Myers, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Leslee Pettitt-Myers appeals the trial court's order of restitution following her conviction for criminal mischief, a Level 6 felony. Pettitt-Myers alleges, and the State concedes, that the trial court abused its discretion in determining the amount of restitution owed to the victim.

[2] We reverse and remand this case to the trial court with instructions that it consider additional evidence, calculate the proper amount of restitution that is owed, and issue a revised order reflecting that amount.

Facts and Procedural History

[3] On December 10, 2020, Timothy Ragland called 911 and reported a house fire on West 93rd Street in Indianapolis. The house was owned by Gary Lee Edwards. Ragland, who lived in the neighborhood, stated to the dispatcher that he saw a “fancy white car” speeding away from Edwards's house. Transcript Vol. II at 39-40. Firefighters arrived at the scene and Fire Marshal Jonathan Kempler (Marshal Kempler) discovered pieces of a white car, bearing the word “Tesla” along West 93rd Street near a street sign that appeared to have been struck by a vehicle.

[4] It was determined that the fire was intentionally set with the use of an accelerant, and Marshal Kempler concluded that the house—built in 1973—was a total loss. A detached garage was not destroyed by the fire, but one of the walls and the gutters were damaged, and there was a hole in the roof that the firefighters created. The house was not insured, and Marshal Kempler determined that the loss amounted to $202,900 based on property tax records and a formula he used to determine the value of the contents inside the residence.

[5] Further investigation identified Pettitt-Myers as the driver of the Tesla and the individual who set fire to Edwards's house. The evidence showed that Pettitt-Myers—Edwards's former neighbor—had engaged in an altercation with him in 2018 about the “unkempt” condition of his property. Appellant's Appendix Vol. II at 3.

[6] On June 15, 2023, the State charged Pettitt-Myers with two counts of arson, a Level 4 felony, and one count of leaving the scene of an accident, a Class B misdemeanor. On January 9, 2025, Pettitt-Myers agreed to plead guilty pursuant to a written plea agreement to criminal mischief, a Level 6 felony, in exchange for the dismissal of all other charges. The agreement called for Pettitt-Myers to serve two years of incarceration suspended to probation and to pay restitution in an amount to be determined by the trial court at a subsequent hearing.

[7] The trial court accepted the plea agreement, and at the restitution hearing on March 31, 2025, Pettitt-Myers called a real estate appraiser to testify on her behalf. The appraiser had inspected Edwards's property, examined photographs of the residence, and compared the property to other houses in the vicinity. The appraiser considered Edwards's property to be in fair condition prior to the fire, needing updates and repairs, and estimated that the house was worth $140,000 at the time of the fire and that the garage had a value of $15,000. The appraiser also estimated that it would cost between $135 to $175 per square foot to rebuild the residence.

[8] Edwards testified that he purchased the property in 2007 for $150,000, and that the house was approximately 2,207 square feet in size. Edwards rented the house to several people until 2013 and later used the residence as storage for his personal property. Edwards had not demolished the residence at the time of the restitution hearing.

[9] Edwards further testified that in February 2023, he contacted H.E. Homes, a building contractor, who estimated it would cost “between $548,000 and $710,000” to rebuild the house. See Exhibit 43. H.E. Homes further estimated that it would cost between “$25,000 to $45,000 to demolish” the remains of the residence. See id. Edwards obtained a second estimate of $643,710 from Winget Development LLC that same month for the rebuild cost.

[10] In December 2024, H.E. Homes informed Edwards that the price of rebuilding had increased “40%” since the prior estimate. Exhibit 44. Edwards also testified that the city required him to demolish the remains of the house but that he was not sure “what the ultimate goal with that property is at this time” but he thought “it more likely that [he would] rebuild something.” Transcript Vol. II at 58.

[11] The trial court sentenced Pettitt-Myers according to the terms of the plea agreement and ordered her to pay Edwards $322,945 in restitution. In arriving at that amount, the trial court stated that it was going to “take the low end of the—if [Edwards] wanted to replace it of [sic] $135 per square foot, at the amount that he said was the square footage of 2,207, and give the restitution amount of $297,945, plus the $25,000 in demo.” Id. at 69. In other words, the trial court based its restitution order on the cost of rebuilding a new residence.

[12] Pettitt-Myers now appeals.

Discussion and Decision

[13] Pettitt-Myers claims that the trial court abused its discretion by ordering restitution “based on the cost of building a new house rather than the fair market value of the existing house at the time of its destruction.” Appellant's Brief at 4. The State agrees that the restitution order was erroneous and that this case should be remanded for a correct calculation of the restitution that Pettitt-Myers must pay.

[14] When the trial court sentences a defendant, it may also order her to pay restitution. Ind. Code § 35-50-5-3. The central purpose of restitution is to “vindicate the rights of society and to impress upon the defendant the magnitude of the loss the crime has caused.” Akins v. State, 39 N.E.3d 410, 412 (Ind. Ct. App. 2015). Moreover, restitution serves to compensate the defendant's victim. Id. One category of loss for which restitution may be ordered includes “property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate).” I.C. § 35-50-5-3(a)(1). For restitution purposes, “replacement cost is the value of the destroyed item at the time of the loss.” S.G. v. State, 956 N.E.2d 668, 684 (Ind. Ct. App. 2011), trans. denied (emphasis added).

[15] A restitution order must be supported by sufficient evidence of actual loss sustained by the victim of a crime. Akehurst v. State, 115 N.E.3d 515, 518 (Ind. Ct. App. 2018). The amount of actual loss is a factual matter to be determined upon the presentation of evidence. Baker v. State, 70 N.E.3d 388, 390 (Ind. Ct. App. 2017), trans. denied. Thus, an order of restitution is a matter within the trial court's sound discretion and will be reversed upon a showing of abuse of discretion. Archer v. State, 81 N.E.3d 212, 215 (Ind. 2017). An abuse of discretion occurs when the order is clearly against the logic and effect of the facts and circumstances before the court or the reasonable, probable, and actual deductions to be drawn therefrom. Wolff v. State, 914 N.E.2d 299, 303 (Ind. Ct. App. 2009). Evidence supporting a restitution order is sufficient if it affords a reasonable basis for estimating loss and does not subject the trier of fact to mere speculation or conjecture. J.H. v. State, 950 N.E.2d 731, 734 (Ind. Ct. App. 2011).

[16] Here, conflicting evidence was presented at the restitution hearing regarding the value of Edwards's residence at the time of the fire.¹ More specifically, Pettitt-Myers's witness testified that the residence's value was $140,000. Marshal Kempler, however, testified that the estimated damages amounted to $202,900. Hence, there was evidence conflicting with Pettitt-Myers's claimed value that the trial court did not address when ordering restitution. Because there is a factual dispute as to the value of the residence at the time of the fire, this case must be remanded to the trial court so that it may determine the actual value of Edwards's property at the time of loss.

[17] We further note that other costs are attributable to Pettitt-Myers as a result of her crime, including the cost of repair of Edwards's garage. Specifically, Edwards testified that the soffit and gutters were damaged, the door was “gone,” and there were holes in the wall and roof as a result of the fire. Transcript Vol. II at 55. While Pettitt-Myers disregards this cost, it is, nonetheless, a loss that Edwards sustained that resulted from her crime. See Smith, 990 N.E.2d at 520 (holding that any loss proven to be attributable to the defendant's charged crimes is recoverable as restitution).

[18] Finally, even though Pettit-Myers asserts that the restitution order should be set aside because Edward's plan to rebuild was merely speculative, the current cost of rebuilding the property—whether Edwards rebuilds or not—is not the basis for the appropriate restitution. Rather, the restitution amount that Pettit-Myers is ordered to pay must be based on the value of Edwards's house at the time of the fire. See Baker, 70 N.E.3d at 391. Thus, we remand this case to the trial court with instructions that it consider additional evidence so that it may determine the value of Edwards's destroyed and/or damaged property at the time of the loss and issue a revised restitution order that reflects the same.

[19] Reversed and remanded.

[20] I respectfully dissent. I am concerned caselaw drifted from the statute we are tasked to apply. Based on the plain language of Indiana Code section 35-50-5-3(a)(1), I cannot say the trial court erred in considering the range of valuation evidence before it and ultimately awarding the victim the lower end of what it would actually cost to replace the victim's home on his parcel of real estate.

[21] In Indiana Code section 35-50-5-3(a)(1), our legislature explicitly authorized a restitution order that compensates for “property damages of the victim incurred as a result of the crime, based on the actual cost of repair (or replacement if repair is inappropriate)[.]” (emphases added). Here, because the house was a total loss, repairing the home was not feasible, and therefore, the State presented evidence on the actual cost of replacement. The trial court then entered a restitution order within the range of evidence on the actual cost of replacing the home. Doing so was consistent with the statute.

[22] The analytical drift appears to stem from passing language in S.G. v. State, where the court remanded the case to award the victim the cost of replacing an iPhone 3G. 956 N.E.2d 668, 684 (Ind. Ct. App. 2011), trans. denied. Without reference to the statute—which contemplates the actual cost of replacement—the court noted that, on remand, “the replacement cost” would be “valued as of the time [the phone] was stolen[.]” Id. I do not read this portion of S.G. as instructive on the Indiana General Assembly's intent regarding the actual cost of replacement. Rather, the holding of this relatively recent case was limited, standing only for the proposition that a victim must replace the destroyed or damaged property with like-kind property. In S.G., the victim waited four months to replace her iPhone 3G with the just-released iPhone 4G, and the court found that the actual cost of replacing her iPhone 3G—the older model— was not equivalent to the cost of the “state of the art” iPhone 4G. See id. (“Restitution is not a means by which a victim may obtain better or more state of the art equipment.”). That is, a victim cannot wait for a newer model when the destroyed or damaged model is still available on the primary market. See id. at n.12 (noting that the 3G had been available for purchase). Thus, to the extent S.G. implies as much, I cannot read the “actual cost of ․ replacement” as limiting restitution to the value of a used item on the secondary market, which represents mere pennies on the dollar. I.C. § 35-50-5-3(a)(1).

[23] To be sure, restitution is not designed to work a windfall. Rather, as my colleagues correctly point out, the purpose of restitution is to “vindicate the rights of society,” “impress upon the defendant the magnitude of the loss the crime has caused,” and “compensate the defendant's victim.” Akins v. State, 39 N.E.3d 410, 412 (Ind. Ct. App. 2015). But determination of the sum that makes a victim whole is a fact-sensitive question entrusted to the broad discretion of the trial court. See id. And because the statute explicitly authorizes awarding the actual cost of replacement where, as here, repair is inappropriate, I cannot say the trial court erred in entering a restitution order that was consistent with the statute.

[24] For the foregoing reasons, I respectfully dissent.

FOOTNOTES

1.   Pettitt-Myers does not challenge the $25,000 demolition cost that she was ordered to pay.

Altice, Chief Judge.

Judge May concurs. Judge Foley dissents with separate opinion. May, J., concurs. Foley, J., dissents with separate opinion.